Rector v. State

• Decision Date: 17 December 1914
• Docket Number: 688
• Parties: RECTOR v. STATE.
• Court: Alabama Court of Appeals

66 So. 857

11 Ala.App. 333

RECTOR v. STATE.

No. 688

Court of Appeals of Alabama

December 17, 1914

Appeal from Circuit Court, Lamar County; Bernard Harwood, Judge.

Jim Rector was convicted of manslaughter, and he appeals. Affirmed.

Defendant was indicted for unlawfully and with malice aforethought killing Jim Wright by cutting him with a knife, but without premeditation or deliberation. Motion was made to quash the indictment on various grounds, among them being that the grand jurors who were impaneled and who returned said true bill against this defendant, according to the records of this court, did not constitute, nor were they properly drawn as grand jurors as required by law in such case, and because the judge failed before the adjournment of the spring term of the court to draw from the jury box in open court the names of not less than 50 names which were to supply the grand and petit juries for this term of court; and because the record shows that the judge qualified the jury as follows:

"And the court ascertained, ordered, and adjudged that of the persons named in said venire and who had not been excused, the following named persons possessed all the qualifications required by law as grand and petit jurors. The names of said jurors possessing said qualifications are as follows: (Here follows the names of 18 jurors.) The court then ordered that the clerk write on separate slips of paper the names of all jurors in attendance upon the court, and who had not been excused, and to place each of said names in a hat, and the clerk obeyed such order. Thereupon the presiding judge of the court drew from said hat in open court the names of 18 qualified jurors. Said 18 persons so drawn are to compose the grand jury for the first week, and are as follows: (Here follows the same 18 names.) The said above-named persons being the first 18 names drawn from the said hat, and being adjudged by the court to possess all the qualifications required by law for grand jurors, and other grounds raising the same question."

The plea in abatement was based on the same grounds as was the motion to quash. The facts sufficiently appear from the opinion of the court.

The following charges were refused to defendant:

(1) Unless you believe beyond all reasonable doubt that defendant intended to take the life of Jim Wright when he cut him, you cannot find defendant guilty. (2) If the jury believe from the evidence that defendant was free from fault in bringing on the difficulty, that he was being assaulted by deceased and other parties in such manner as created in the mind of defendant the belief that he was in danger of losing his life or of receiving great bodily harm, then he had a right to strike in self-defense, even to the taking of the life of the assailant, and that he used no more force than was necessary to repel the attack, then you cannot convict defendant of any offense. (3) Under the evidence in this case, you cannot find defendant guilty of murder in the second degree. (4) Same as to manslaughter in the second degree. (5) Same as to manslaughter in the third degree. (6) Affirmative charge as to murder in the second degree. (7) If you have a reasonable doubt as to whether or not defendant acted in self-defense, you cannot find defendant guilty. (8) It is a well-settled rule of law that if there be two reasonable constructions which can be given the facts proven one favorable and the other unfavorable to defendant, it is the duty of the jury to accept that which is favorable rather than that which is unfavorable. (9) You cannot convict defendant unless you believe from the evidence that defendant cut, shot, or killed the deceased unlawfully and with malice aforethought. (10) Defendant is a competent witness in his own behalf, and his testimony is to be considered and weighed as the testimony of other witnesses, and the jury has no right to ignore or discard his testimony because he is the defendant, and, if his testimony be reasonable, his manner of testifying indicative that he is telling the truth, and if his statements are not shown by other testimony to be false and especially if his statement of the facts is supported and corroborated by other evidence, the jury should accept his testimony and find a verdict accordingly. (11) Under the evidence in this case, you cannot find defendant guilty of assault and battery. (12) Same as to manslaughter in the first degree.

Walter Nesmith and Walter L. Thompson, both of Vernon, and A.H. Carmichael, of Tuscumbia, for appellant.

R.C. Brickell, Atty. Gen., and T.H. Seay, Asst. Atty. Gen., for the State.

BROWN J.

The law (Acts Sp.Sess.1909, pp. 305-320) imposes upon the jury commissioners of the county the duty of preparing a jury roll, which must contain the name of every male citizen of the county, not specifically exempt, possessing the prescribed qualifications requisite to jury service. The statute provides for a clerk, and contemplates that he shall perform the clerical labors of the commission, keep its records, and certify to their contents.

"To the end that every male citizen possessing the prescribed qualifications and not exempt may be enrolled, and none other, the commission may summon witnesses, administer oaths, and take testimony touching the qualifications of any person residing in the county. The jury roll is the evidence of the commission's judgments. The determination of the qualifications of the prospective jurors involves the judicial function. 'Whenever the law vests a person with power to do an act and constitutes him a judge of the evidence on which the act may be done, and at the same time contemplates that the act is to be carried into effect through the instrumentality of agents, the person thus clothed with power is invested with discretion, and is quoad hoc a judge.' 23 Cyc. 504." Nelson v. State, 62 So. 190.

Upon the completion of the jury roll, the commission is required to transcribe the names appearing on the roll on plain white cards all of the same size and texture, showing the place of residence and occupation; and these cards are placed in the jury box, and none other. When the name of a person is drawn from the jury box for jury service, the presumption of the law is that such person possesses all the qualifications prescribed by the statute. Jones on Evidence, §§ 45, 46; Guesnard v. L. & N.R.R. Co., 76 Ala. 453. The trial court was therefore not required to inquire into and ascertain the general qualifications of the persons drawn from the jury box to constitute the grand jury which found the indictment in this case. The fact that the names of the persons who constituted the grand jury were drawn from the box by the presiding judge was prima facie evidence that they were qualified jurors, and was sufficient evidence to justify the court, in the absence of evidence offered at the time the grand jury was organized, to enter the order the court did enter--that the persons organized as a grand jury possessed all the qualifications required by law of grand jurors.

If this finding of the court could be impeached at all, there was nothing in the evidence of the witness Waldrop that tended to impeach it. All that his evidence tended to show was that the court made no specific inquiry as to the qualifications of the persons organized as members of the grand jury; and, as we have shown, no such duty rested upon the court, in the absence of proof overcoming the presumption of the law that the persons whose names were drawn from the jury box possessed the requisite qualifications.

The fact that the grand juror Ben Wright was related to the deceased was not material, for the reason that this was not made a ground of the motion to quash the indictment.

For reasons above stated, as well as for the reason that no objection to the indictment on any ground going to the formation of the grand jury can be taken by motion to quash (Acts Sp.Sess. 1909, p. 315; Askew v. State, 6 Ala.App. 22, 60 So. 455) the defendant's motion to quash the indictment was properly overruled.

After the defendant had interposed the plea in abatement to the indictment, and before the demurrer was filed thereto, the record shows that the plea was amended by striking out grounds 1, 2, and 3; some of these grounds going to the point that the persons constituting the grand jury were not drawn by the person authorized by law to draw them. With these matters stricken from the plea by amendment, the other matters sought to be presented by that plea, in view of the provisions of section 23 of the jury law (which provides: "That no objection to an indictment on any ground going to the formation of the grand jury which found the same can be taken to the indictment, except by plea in abatement to the indictment; and no objection can be taken to an indictment by plea in abatement except upon the ground that the grand jurors who found the indictment were not drawn by the officer designated by law to draw the same"--Acts Sp.Sess.1909, p. 315, § 23), afforded no ground for quashing the indictment, and the court did not err in sustaining the demurrer to the plea in abatement. Collins v. State, 3 Ala.App. 67, 58 So. 80; Newell v. State, 8 Ala.App. 182, 62 So. 968; Askew v. State, 6 Ala.App. 22, 60 So. 455.

The provisions of the statute pertaining to the time the court shall draw the regular jurors, and the number of such regular jurors to be drawn, are merely directory and constitute no ground for quashing an indictment, either on motion to quash or on plea in abatement, provided the names of such jurors are drawn by the judge of the court, the person designated by law to draw the same. Acts Sp.Sess. 1909, pp. 315-317, §§ 23, 29.

If what was said in Tucker v. State, 152 Ala. 1, 44 So. 587, could be...